United States Equal Employment Opportunity Commission, Plaintiff-Appellant,
AutoZone, Inc., and AutoZoners, LLC, Defendants-Appellees.
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 5579 - Amy
J. St. Eve, Judge.
Petition for Rehearing En Banc.
Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner,
Sykes, Hamilton, and Barrett, Circuit Judges.
consideration of the EEOC's petition for rehearing, the
panel has voted unanimously to deny rehearing. A judge in
active service called for a vote on the request for rehearing
en banc. A majority of judges in active service voted to deny
rehearing en banc. Chief Judge Wood and Judges Rovner and
Hamilton voted to grant rehearing en banc.
therefore ordered that the petition for rehearing and for
rehearing en banc is DENIED.
Chief Judge, and Rovner and Hamilton, Circuit Judges,
dissenting from denial of rehearing en banc.
case presents a straightforward question under Title VII of
the Civil Rights Act of 1964: Does a business's policy of
segregating employees and intentionally assigning members of
different races to different stores "tend to deprive any
individual of employment opportunities" on the basis of
race? The panel answered this question "not
necessarily." I cannot agree with that conclusion. The
importance of the question and the seriousness with which we
must approach all racial classifications convince me that
this case is worth the attention of the full court.
VII makes it unlawful for any employer to "limit,
segregate, or classify his employees ... in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. §
2000e-2(a). The Equal Employment Opportunity Commission
argues that AutoZone violated this provision when it used
race as the defining characteristic for sorting
employees into separate facilities-in this case, a
"Hispanic" store located at South Kedzie Avenue and
West 49th Street, and an "African-American" store
in Chicago's Roseland neighborhood. The Commission, whose
factual allegations we must credit at this stage, claims that
AutoZone went so far as to transfer one African-American
employee, Kevin Stuckey, from the Kedzie store to the
Roseland store in order to ensure the racial homogeneity of
the panel's reasoning, this separate-but-equal
arrangement is permissible under Title VII so long as the
"separate" facilities really are "equal."
In other words, if a Title VII plaintiff cannot prove that
her employer's intentional maintenance of racially
segregated facilities diminished her "pay, benefits, or
job responsibilities, " then her employer has not
violated section 2000e-2(a). See EEOC v. AutoZone,
Inc., 860 F.3d 564, 565, 566, 567, 568 (7th Cir. 2017).
That conclusion, in my view, is contrary to the position that
the Supreme Court has taken in analogous equal protection
cases as far back as Brown v. Board of Education,
347 U.S. 483 (1954), and it is contrary to the position that
this court took in Kyles v. J.K. Guardian Security
Services, Inc., 222 F.3d 289 (7th Cir. 2000).
start with Brown to find support for the proposition
that separate is inherently unequal, because deliberate
racial segregation by its very nature has an adverse effect
on the people subjected to it. The Court in Brown
observed that "the Negro and white schools involved have
been equalized, or are being equalized, with respect to
buildings, curricula, qualifications and salaries of
teachers, and other 'tangible' factors."
Brown, 347 U.S. at 492. Nevertheless, the Court held
that "[s]eparate educational facilities are inherently
unequal" because separation itself has a detrimental
effect on minority children. Id. at 495. The Supreme
Court has adhered scrupulously to that holding. For example,
in Parents Involved in Community Schools v. Seattle
School District No. 1, 551 U.S. 701 (2007), in a part of
the opinion for which he wrote for the Court, Chief Justice
Roberts reiterated that even well-motivated racial
classifications are inherently suspect, and that it is never
permissible to classify individuals in a way that makes their
race "determinative standing alone." Id.
at 723; see also id. at 748 ("The way to stop
discrimination on the basis of race is to stop discriminating
on the basis of race.").
course, private parties such as AutoZone are not subject to
the Fourteenth Amendment, but through legislation that rests
in part on section 5 of the Fourteenth Amendment-namely, the
Civil Rights Act of 1964, of which Title VII is a key
provision-the same principles carry over. Our decision in
Kyles makes that clear. As we explained in
Kyles, section 2000e-2(a)(2) broadens the
protection offered by other parts of the Civil Rights Act, by
proscribing "employment practices which in any way ...
would deprive or tend to deprive any individual of
employment opportunities." Kyles, 222 F.3d at
298 (internal quotation marks omitted). If this had been a
private suit brought by Stuckey, it might have been
appropriate for the panel to disregard the effect of
AutoZone's racial segregation on persons other than the
plaintiff. But it was not. This was a suit brought by the
EEOC, under its authority to enforce Title VII. The
Commission made the point that, in addition to the dignitary
harm Stuckey suffered by being the victim of overt racial
segregation, AutoZone's practice of designating the
Kedzie store as the "Hispanic" store and the
Roseland store ...